Opinion
7 Div. 968, 969.
August 19, 1924. Rehearing Denied October 7, 1924.
Appeal from Circuit Court, De Kalb County; W.W. Haralson, Judge.
Warner and Burnett Adkins were convicted of manslaughter in the first degree, and they appeal. Affirmed.
Certiorari denied by Supreme Court in Ex parte Adkins et al., 212 Ala. 125, 101 So. 780.
Charge 5, refused to defendants, is as follows:
"I charge you that the burden is on the defendants to make out his plea of self-defense; but if when all the evidence is all considered, and under the oral charge as to what constitutes self-defense, you have a reasonable doubt as to whether the plea is made out, then the defendants are entitled to the benefit of the doubt, and you should not convict them."
Isbell Scott, of Ft. Payne, for appellants.
Counsel argue for error in rulings on the trial, but without citing authorities.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Proper predicate was laid for the dying declaration, and only a general objection was interposed. Moore v. State, 16 Ala. App. 503, 79 So. 201; Carter v. State, 205 Ala. 460, 88 So. 571; Tyler v. State, 207 Ala. 129, 92 So. 478. The bullet was properly allowed in evidence, and testimony as to wounds. Suttle v. State, 18 Ala. App. 411, 92 So. 531; Manly v. State, 16 Ala. App. 475, 79 So. 149. Charge 5 was bad for use of the word "self-defense." Collins v. State, 17 Ala. App. 186, 84 So. 417. Charges not requiring the finding of the jury to be based on the evidence are well refused. Edwards v. State, 205 Ala. 160, 87 So. 179.
Defendants were jointly indicted for murder in the second degree and convicted of manslaughter in the first degree.
The evidence for the state tended to show that Warner Adkins, a deputy sheriff of De Kalb county, was accompanied by Burnett Adkins and one Kirk Ellison in search of a still. After failure to locate the still and upon their return from the search after levying on certain personal property of one Elevins, they encountered John Adkins, Andrew Adkins, and Reynold Adkins, and a difficulty ensued in which Andrew Adkins was shot and wounded, John Adkins was killed, and defendant Warner Adkins was wounded. The defendant Warner Adkins testified that he shot three times, Andrew Adkins shot four times, and Burnett Adkins shot three times. As to who was at fault in bringing on the difficulty there was a sharp conflict in the evidence.
After proof that a state's witness who was 160 yards from the place of the fatal difficulty heard the shooting and went there immediately and found deceased lying on the ground mortally wounded, and asked deceased if he was hurt, and deceased replied, "I am killed," and died there in a little while, proper predicate was laid for the admission of the dying declaration of deceased when asked. "Who done it?" he replied, "Burnett." Moore v. State, 16 Ala. App. 503, 79 So. 201; Tyler v. State, 207 Ala. 129, 92 So. 478. No objection was interposed to the question. There was objection to the answer on the grounds that it was irrelevant, incompetent, and immaterial, and motion to exclude was overruled and exception reserved. The objection came too late. Moreover, the answer was not objectionable on the grounds specified. Circuit Court Rule 33, Code 1907, p. 1527, provides:
"When in the progress of the trial of any cause in a court of original jurisdiction, objection and exception are reserved to introduction of testimony that is not patently illegal, or irrelevant, such exception will not be considered in error, unless the record shows that the grounds of objection were specified. In all cases, the presiding judge, before ruling on any objections to testimony, may call on counsel to specify the grounds on which it is rested; and the appellate court in revising such decision, must consider only the grounds of objection which are shown to have been clearly specified."
One of the bullets found in the body of deceased was introduced in evidence over the objection of defendant. This did not constitute error, as it was pertinent to the inquiry as to whose gun was used in shooting deceased. The evidence as to the size of the bullet holes in the body of deceased was admissible for the same purpose. Suttle v. State, 18 Ala. App. 411, 92 So. 531.
Exception was reserved to the action of the trial court admitting evidence as to course of the bullets in the wounds of Andrew Adkins, who was shot in the same difficulty in which deceased was killed. Such evidence was admissible as tending to show the relative position of the parties at the time of the shooting and was by the court limited to such purpose. It was also relevant to corroborate other testimony of state's witnesses that each of the defendants participated in the killing with the common intent to rid themselves of their adversaries. Miller v. State, 130 Ala. 1, 30 So. 379; Hawes v. State, 88 Ala. 37, 7 So. 302.
Mrs. J.F. Austin, witness for state, was asked upon direct examination, "I will ask you to state to the jury what kind of gun you heard first?" An objection to this question was overruled. Failure to move to exclude the answer precludes the defendant from availing himself of any erroneous ruling of the court overruling objection to the question. Rector v. State, 11 Ala. App. 333, 66 So. 857; Johnson v. State, 4 Ala. App. 62, 58 So. 754. The above principle of law also disposes of the insistence of defendant that error was committed in the admission of the testimony of J.F. Blevin as to "the route from his place up to Dr. Edwards."
Charges L and 7 were substantially covered by given charge C as well as by the oral charge of the court.
Charges 2, 3, and 4 are abstract and were properly refused.
Charge 5 was bad in that it failed to define the elements of self-defense. Collins v. State, 17 Ala. App. 186, 84 So. 417; Powell v. State, 5 Ala. App. 75, 59 So. 530.
Charge 6 is bad in that it does not require the finding of the jury to be based upon the evidence. Edwards v. State, 205 Ala. 160, 87 So. 179.
Charge 8 was substantially covered by charge B as well as by the oral charge of the court.
There is no error in the record, and the judgment of the circuit court is affirmed.
Affirmed.